Retired Supreme Court Justice outlines Constitution reform

By A Contributor

This important book by retired Supreme Court Justice John Paul Stevens, who served on the highest court from 1975-2010, proposes six constitutional amendments based on his experience on the bench.  While some are well-known, oft-debated issues (campaign finance, death penalty, gun control), others are complex and abstruse and less discussed in ongoing political discourse (anti-commandeering, sovereign immunity).

This well-written book is accessible to the layperson willing to deal with a little legal jargon (explained when necessary) and brief discussion of past court cases. 

Each chapter deals with the history of the issue for which Stevens proposes an amendment.  Particularly for the lesser-known topics, this discussion is essential to understanding the issue.  In the case of the “hot-button” topics, the history of key cases sets a fascinating and very helpful context for understanding the current debate.

The “anti-commandeering rule” actually stems from a 5-4 decision in the 1997 Printz vs. United States case. 

Two local chief law enforcement officers were upheld in their wish to overturn lower court decisions and allow them to opt out of participating in required national background checks for firearms purchases. 

Stevens argues that this sets a potentially dangerous precedent that could, for example, impede the federal government’s ability to respond effectively to natural disasters or initiate conscription.  Stevens recommends dealing with this problem by adding four words to Article VI (“and other public officials”) to those who must support the Constitution.

Political gerrymandering occurs when the ruling party of a state government redistricting congressional districts, which by law must occur every ten years after the decennial census, to optimize its own party’s chances of winning legislative seats and minimize the opposing party. 

This practice has been commonly used by both parties since the term was first coined in response to the actions of Massachusetts Governor Elbridge Gerry in 1812. 

Stevens discusses an interesting parallel, racial gerrymandering, done to minimize the power of minority groups. 

This practice has been consistently struck down by courts in recent decades, while political gerrymandering has been tolerated. Stevens proposes an amendment requiring districts to be “compact” and “contiguous,” with any deviations from that justifiable only by reference to neutral criteria like natural or historic boundaries. 

The aim of preserving the power of the current party in control is explicitly disallowed as such a criterion.

Campaign finance was put on the public’s radar by the Citizens United ruling of 2010, but Stevens also reviews several earlier cases on the issue, especially Buckley vs. Valeo in 1976. 

He offers an amendment removing any prohibition by Congress or any state from imposing “reasonable” limits on the amounts of money candidates or their supporters may spend in election campaigns.  Interestingly enough, such an amendment was very recently introduced in the Senate by Majority Leader Harry Reid.

“Sovereign immunity” refers to the practice, going back at least to England’s King Henry IV in 1600, of protecting the monarch from liability or being sued.  Stevens reviews the damage done by this notion, which he sees as more consistent with a divine-right monarchy than a constitutional democracy. 

He proposes an amendment saying that no provision of the Constitution shall be construed as providing any government, agency, or official with immunity from violating any act of Congress or the Constitution.

In the chapter on the death penalty, Stevens reviews a little history of its application and challenges in the courts, including issues like pain and suffering and DNA exoneration.  Stevens proposes a constitutional ban on the death penalty by adding the words “such as the death penalty” after the proscriptions against “cruel and unusual punishment” in the eighth amendment.

Stevens’ final proposed amendment attempts to clarify whether the second amendment’s famous “right of the people to keep and bear arms” protection refers to individuals or only to “a well-regulated militia.”  Reviewing court decisions of the recent past, he argues that the current NRA-championed position is really quite extreme and not consistent with the intentions of the Founding Fathers or most history since then. 

He argues for the insertion “when serving in the militia” after the phrase “to keep and bear arms” to clarify this once and for all.

Actually amending the Constitution was intentionally made difficult, having been done only 27 times in the last 225 years. 

Doing so requires a two-thirds approval of both the House and Senate and approval by three-quarters of state legislatures. 

Clearly a brief review cannot do justice to the complex arguments that Stevens brings to bear to support his proposed amendments. 

I urge the reader of whatever political persuasion to thoughtfully read this book with an open mind.  Even if you are not persuaded to support all six amendments, your understanding of the issues will be greater.

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